' This is a second appeal against the judgments, dated 6th May, 1979 and dated 23rd September, 1980 passed by the learned Rent Controller, Karachi and the learned 5th Additional District Judge, Karachi, respectively, in rent case No, 2686/71 and Rent Appeal No, 340/79 respectively.
' The brief facts leading to the filing of the above second appeal are that the respondent had let out the shop in question in 1965 at the rate of Rs, 30 per month. The respondent filed the above rent application for ejectment on the ground of default for the period of three months, July, August and September, 1971, personal requirement, installing heavy lathe machine in the shop without the permission of the landlord and causing damage to the tenement. The above application was resisted by the appellant. The learned Rent Controller on the basis of the pleadings of the parties framed 5 issues. The respondents/applicants examined respondents Nos 3 and 4 and one Muhammad Ahmed. The appellant/ opponent examined himself. The learned Rent Controller by the above order, dated 6th May, 1979 allowed the above rent application on all the grounds. The appellant being aggrieved by the above order filed Rent Appeal No, 340/79 which was partly allowed, but the findings on the question of default and personal requirement were maintained by the learned Additional District Judge by his above order, dated 23rd September, 1980. The appellant being aggrieved by the above two orders has filed the presnt second appeal.
2. In support of the above second appeal Mr. Virji learned counsel for the appellant has urged as follows :-
(i) That the finding of the learned two Courts below on the question of default is based on misreading of evidence.
(ii) That since admittedly the subject-matter of the tenancy was a shop, two Courts below could not have granted ejectment on the ground of personal requirement of the respondents for residential purpose.
On the other hand Mr. Kunwar Mukhtar Ahmed, learned counsel for the respondents has urged as follows :-
(1) That since there are concurrent findings of the two Courts on both the questions, this Court cannot interfere with the same in this second appeal.
(ii) That the finding on the question of default is supported by evidence on record and it is not based on misreading of the evidence.
(iii) That since the factum that the respondents have 30-32 members of the family stands proved and as there is a concurrent finding on that, the personal requirement of the respondents also stands proved.
(iv) That the appellant had not raised any plea in the written statement that the respondents were not entitled to apply for ejectment from the shop on the ground of personal requirement for residential purpose and therefore, this Court cannot upset the finding of the two Courts on the above ground.
3. Adverting to the question of concurrent finding, it will suffice to observe that it is a well-settled principle of law that if a concurrent finding of fact is based on misreading of evidence or is perverse it can be interfered with in a second appeal. So the basic question in issue is, whether the concurrent findings of the two courts can be interfered with on the above principle.
4. Reverting to the question of default, it may be observed that the learned Rent Controller in his order observed that the rent receipts were issued by the landlord but the appellant had failed to produce the rent receipts for the three months period in dispute and therefore, there was default.
This finding of the learned Rent Controller is evidently based on misreading of evidence as it is an admitted position that no rent receipts were issued nor any rent receipt was filed by the appellant in the rent case. Even the case of the respondents was that the acknowledgment of the receipt of the rent used to be made in the register maintained by the appellant. It is, therefore, clear that the learned Rent Controller has not applied his mind to the evidence on record in proper perspective.
Referring to the finding of the learned first appellate Court on the question of default, it may be observed that the first appellate Court has also misread the evidence by holding "At the same time it is commonly stated by the respondents Nos. 3 and 4 that a register was maintained by the; ppellant on which signature was obtained by the appellant as a receipt of his payment of rent." It is true that respondent No, 3 in his deposition has stated this but the version of respondent No, 4 was somewhat different. It may be advantageous to quote his statement on the above point which is as follows :- "My father used to collect rent from the opponent. My father used to issue receipts and he used to get my signature on register maintained by him."
' According to the above-quoted statement rent receipt was issued by respondent No, 3 i. e.
Tashkeel Ahmed to the appellant and a register was maintained by respondent No, 3 on which he used to obtain the signature of respondent No,
4. However, it was urged by Mr. Kunwar Mukhtar that there has been mistake on the part of the learned Rent. Controller in recording the statement of the above witness and that factually the reference to the maintenance of the register by the above witnesse's father is in fact the reference to the register maintained by the appellant. I am afraid that I cannot read anything into the statement as quoted hereinabove. If there was any mistake, it was incumbent upon the respondents to have brought it to the notice of the learned Rent Controller even at the stage of the arguments. This was not the case of the respondents before the two Courts below. Another aspect which the two Courts have failed to notice was, admittedly that the shop was let out at Rs, 30 per month. Respondent No, 3 in his statement has stated that the rent was increased from time to time from 1965 upto 1971 and in 1971 it was Rs, 70 per month whereas respondent No, 4 in his statement has stated : "The rent in 1965 was Rs, 30 per month and in 1971 it increased to Rs, 70 per month. I cannot say when first increment in rent was made. The rent was increased gradually by the opponent himself." None of the two Courts has given any finding as to the rate of the rent which was clue and payable by the appellant. This fact is to be viewed with the background that the appellant was involved not only in the criminal proceedings, but also a civil suit was filed against the appellant which factum has been admitted by the witnesses. The Civil Suit No, 2117/77 was eventually dismissed by Additional District Judge on 11th October, 1979. The finding on the question of default is evidently based on misreading of evidence and, therefore, I reverse the above finding.
5. As regards the personal requirement the factum that the respondents have 30-32 members of the family has been proved. The only question which is in issue is whether the respondents were entitled to seek ejectment of the appellant from the shop on the ground of personal requirement for residential purpose. It is true that the tenement was constructed on a shop and was let out as shop but in the written statement the appellant had not raised this plea with the result that there is no evidence on the questions, whether the building is situated in a commercial area where predominantly the buildings are commercial, whether the building in question can be treated as a composite building for residential purpose. The Rent Controller in his order has incorrectly observed that previously that shop was used for residential purpose and the respondents needed the same for residential purpose. This observation/ finding of the Rent Controller is again contrary to the record. However, the learned Appellate Court has gone into this question and has held on the basis of the case reported in PLD 1979 Lah. 398 that the respondents were entitled to apply on the ground of personal requirement for residential purpose even if it was a shop. In the case of Dr. Bano Abedin v. Dr. Haq Nawaz Arbab (I) I have considered the question of conversion of the use from non-residential into residential. It may be advantageous to reproduce hereinbelow para. 7 (b) of the judgment which reads as follows :- "(b) It may be observed that the respondent in his written statement has not raised any plea to the effect that the appellant cannot apply for ejectment on the ground of personal requirement for residential purpose for the reason that it was used for non-residential purpose, nor there is any discussion on this aspect, in the two orders under appeal. However, Mr. Nisarally, learned counsel for the respondent has urged that since it is a legal point as it is an admitted position that the premises in question was let out for running a Poly-clinic which is a non-residential purpose, he is entitled in law to raise the above point as this Court will have to take into consideration whether the application on the ground urged is sustainable in law. The above legal position canvassed by the learned counsel for the respondent seems to be correct. However, I am inclined to hold that in order to determine whether a particular premises are non-residential or residential inter alia following facts are to be taken into consideration :- .
(i) Whether the building is situated in a residential area ?
(ii) What is the type of construction of the building, whether it was intended to be used as a residential unit or as a commei cial unit ?
(iii) For what purpose it was used ?
(iv) Whether the purpose was changed with the permission of the Rent Controller under section 11 of the late Ordinance.
' It is an admitted position that the building in question is residential bungalow having two storeys, situated in a residential locality surrounded by residential bungalows and not on the main road but in a lane. It is also admitted position that the above bungalow was constructed for residential purpose and that its purpose was not changed with the permission of the Rent Controller under section 11 of the late Ordinance. The first floor of the bungalow has been used for residential purpose. In my view, merely the fact that the ground floor was rented cut for running a Poly-clinic will not debar the appellant from applying for ejectment on the ground of personal requirement for residential purpose. If I were to accept the contention of the learned counsel for the respondent, it will lead to absurd result. In other words, if a landlord lets out a portion of a bungalow, which is a residential unit for operating a clinic or for any other purpose without the permission of the Rent Controller for converting the purpose under section 11 of the late Ordinance, it will mane that for all time to come, he cannot apply. For ejectment of the tenant on the ground that he and his family need the tenement for residential and, that he will be bound to continue to use the said portion of the bungalow for other purpose than the residential purpose in spite of contravention of building bye-laws
(1) PLD 1982 K.Ar. 818 ' or of the approved building plan. Furthermore, a clinic having residential accommodation for the patients and the staff cannot be equated with a commercial premises like shop etc."
' In the instant case as observed there was no express plea raised by the appellant in the written statement but the arguments were advanced before the Rent Controller as well as before the learned first appellate Court. It has been contended by Mr. Virji that since it is a legal question, the appellant could have urged this point even without raising an express plea in the written statement. On the other hand it was contended by Mr. Kunwar Mukhtar that the question whether a composite building is predominantly a residential building or predominantly a Commercial building, is a question of fact which requires evidence inter alia on the points noticed by me in the above-quoted para. Of my judgment. Mr. Virji has relied upon the case of Sabir Hasan v. Munir Malik (I), in which a learned Single Judge of this Court held that the landlord was not entitled to seek ejectment from a shop even though it was carved out from a residential unit on the ground of his personal residential requirement. It may be observed that the above case proceeded on the assumption that the shop was situated in a Commercial area. In my view it will be just and proper to remand the case on the question of personal requirement to the learned Rent Controller with the direction to allow the parties to led evidence inter alia on the points noticed by me in the above- quoted para. 7 (b) of my above judgment of 1982.
6. 1, therefore, allow the appeal and set aside the orders of the two Courts below with no order as to costs. However, 1 remand the case to the learned Rent Controller only on the question of personal requirement in the above terms.